Judgments nº T-296/06 of Court of First Instance of the European Communities, September 23, 2009

• Resolution Date: September 23, 2009
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-296/06

In Case T-296/06,

Dongguan Nanzha Leco Stationery Mfg. Co., Ltd, established in Dongguan (China), represented by A. Bentley, QC,

applicant,

v

Council of the European Union, represented by J.-P. Hix, acting as Agent, assisted by G. Berrisch, lawyer,

defendant,

supported by

Commission of the European Communities, represented by H. van Vliet and T. Scharf, acting as Agents,

and by

IML Industria Meccanica Lombarda Srl, established in Offanengo (Italy),

Interkov spol. s r.o., established in Bráník (Czech Republic),

MI.ME.CA. Srl, established in Ricengo (Italy),

NIKO - kovinarsko podjetje, d.d. -elezniki, established in -elezniki (Slovenia),

represented by R. Bierwagen, lawyer,

interveners,

APPLICATION for partial annulment of Council Regulation (EC) No 1136/2006 of 24 July 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of lever arch mechanisms originating in the People-s Republic of China (OJ 2006 L 205, p. 1), in so far as it applies to the applicant,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Seventh Chamber),

composed of N.J. Forwood (Rapporteur), President, D. -váby and E. Moavero Milanesi, Judges,

Registrar: K. Poche-, Administrator,

having regard to the written procedure and further to the hearing on 19 February 2009,

gives the following

Judgment

Legal context

1 The first subparagraph of Article 2(1) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1) (-the basic regulation-), as amended, provides:

-The normal value shall normally be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country.-

2 According to Article 2(3) of the basic regulation:

-When there are no or insufficient sales of the like product in the ordinary course of trade, or where because of the particular market situation such sales do not permit a proper comparison, the normal value of the like product shall be calculated on the basis of the cost of production in the country of origin plus a reasonable amount for selling, general and administrative costs and for profits, or on the basis of the export prices, in the ordinary course of trade, to an appropriate third country, provided that those prices are representative. --

3 Article 2(7) of the basic regulation provides:

-(a) In the case of imports from non-market economy countries, normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the Community, or where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Community for the like product, duly adjusted if necessary to include a reasonable profit margin.

-

(b) In anti-dumping investigations concerning imports from the People-s Republic of China, Vietnam and Kazakhstan and any non-market economy country which is a member of the WTO at the date of the initiation of the investigation, normal value will be determined in accordance with paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation and in accordance with the criteria and procedures set out in subparagraph (c) that market economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned. When this is not the case, the rules set out under subparagraph (a) shall apply.

--

4 Article 2(8) of the basic regulation provides:

-The export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Community.-

5 Article 2(10) of the basic regulation provides:

-A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at as nearly as possible the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. Any duplication when making adjustments shall be avoided, in particular in relation to discounts, rebates, quantities and level of trade. --

6 Article 6(8) of the basic regulation provides:

-Except in the circumstances provided for in Article 18 [non-cooperation], the information which is supplied by interested parties and upon which findings are based shall be examined for accuracy as far as possible.-

7 Article 9(4) of the basic regulation provides:

-Where the facts as finally established show that there is dumping and injury caused thereby, and the Community interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. - The amount of the antidumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry.-

Background to the dispute

The initial investigation procedure

8 The applicant, Dongguan Nanzha Leco Stationery Mfg. Co., Ltd, is a company governed by Chinese law with its headquarters in Dongguan (China). It manufactures lever arch mechanisms (-LAMs-) generally used for archiving sheets of paper or other documents in binders or files.

9 The applicant sells all of its production to World Wide Stationery Ltd (-WWS-) via its principal shareholder, Leco Stationery Manufacturing Co. Ltd (-LECO-). WWS and LECO are both established in Hong Kong (China). WWS then resells the LAMs manufactured by the applicant to customers on the Chinese market and, also, for export outside China to the European Community and to other non-member countries.

10 On 11 March 2005, a complaint was made to the Commission of the European Communities by three Community producers, Interkov spol. s r.o., MI.ME.CA. Srl and NIKO - kovinarsko podjetje, d.d., -elezniki, which together account for more than 50% of the total production of LAMs within the Community. The complaint was supported by IML Industria Meccanica Lombarda Srl. In that complaint, it was alleged that imports of LAMs from China were being dumped and were thereby causing material injury to the Community industry.

11 On 28 April 2005, a notice of initiation of an anti-dumping proceeding concerning imports of LAMs originating in the People-s Republic of China was published, in accordance with Article 5 of the basic regulation, in the Official Journal of the European Union (OJ 2005 C 103, p. 18).

12 Once the procedure had been initiated, the Commission sent questionnaires to all of the parties known to be concerned by the investigation. The applicant completed that questionnaire and then made a request for market economy treatment (MET), pursuant to Article 2(7)(b) and (c) of the basic regulation and, in the alternative, a request for individual treatment (IT), pursuant to Article 9(5) of that regulation. The Commission rejected the applicant-s first request but accepted the second.

13 By e-mail of 16 September 2005, the Commission asked the applicant to assist it in preparing for a visit to Dongguan and Hong Kong, from 17 to 19 October 2005, to enable it to carry out on-the-spot verifications in the context of the investigation. By fax of 4 October 2005, the Commission sent the applicant a formal confirmation of its visit. However, by e-mail of 5 October 2005, the Commission advised the applicant that, due to unforeseen circumstances, it was obliged to cancel the planned visit.

The provisional regulation and the outcome of the investigation procedure

14 On 26 January 2006, the Commission adopted Regulation (EC) No 134/2006 imposing a provisional anti-dumping duty on imports of LAMs originating in the People-s Republic of China (OJ 2006 L 23, p. 13) (-the provisional regulation-). That regulation imposed a provisional anti-dumping duty of 33.3% on imports of LAMs manufactured by the applicant from 28 January 2006, and of 48.1% on all other imports of LAMs originating in China.

15 The normal value of LAMs for exporting producers not granted MET status, such as the applicant, was established, in accordance with Article 2(7)(a) of the basic regulation, on the basis of information received from a producer in an analogue country. The Commission made a provisional finding that Iran was the most appropriate and reasonable choice in that regard. The normal value was thus established as corresponding to the weighted average of the sale price on the domestic...